Ignore and appoint

SHORT-TIMERS

Recess appointments rob the Senate of its advice-and-consent role and violate the spirit of the Constitution.
December 9, 2006

WHATEVER YOU thought of Ambassador John R. Bolton as U.S. representative at the United Nations — and we thought he was too confrontational — his tenure was clouded from the beginning by the fact that his appointment was never confirmed by the Senate. President Bush installed him at the U.N. with a "recess appointment" while the Senate was out of session.

Bush and his would-be successors — Democratic and Republican — should resolve that Bolton is the last major official to serve under this disability. Recess appointments are allowed by the letter of the Constitution, but they violate its spirit.

Bolton, who resigned this week when it became clear that he couldn't be confirmed even by the lame-duck Republican Senate, served for 16 months in what is arguably the most important diplomatic post after secretary of State. Yet his appointment never received the "advice and consent" the Senate is authorized by the Constitution to bestow on — or withhold from — proposed "ambassadors, other public ministers and consuls, judges of the Supreme Court and all other officers of the United States."

Bush installed Bolton under another part of the Constitution that empowers the president to "fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."

Unlike the requirement for advice and consent, this provision is not central to the constitutional balance of powers between the executive and legislative branches. Rather, it's a quaint vestige of the 18th century — an era of stagecoaches, when it could take weeks for enough senators to travel to Washington to fill a quorum.

Since the 1950s, presidents have refrained from making recess appointments to the Supreme Court. But both Bill Clinton and George W. Bush have made such appointments to federal appeals courts, as well as to important executive branch positions, such as Bolton's, that should be subject to Senate confirmation.

With a new Democratic majority in the Senate capable of sustaining a filibuster, Bush may be tempted to resort to recess appointments — perhaps even to the Supreme Court — as payback for what he would see as obstructionism. He should resist the temptation.

We would gladly do away with filibusters of judicial nominations (and of legislation, for that matter). But neither filibusters nor other procedural obstacles that senators may erect to the confirmation process justify the greater evil of judges and ambassadors who have not been confirmed by the Senate. The "way forward" on this issue is for Bush and his successors to honor the spirit as well as the letter of the Constitution.